Joshua B. Swigart, Esq. (SBN: 225557)
2 Robert L. Hyde, Esq. (SBN: 227183)
Hyde & Swigart
4 411 Camino Del Rio South, Suite 301
San Diego, CA 92108-3551
Telephone: (619) 233-7770
6 Facsimile: (619) 297-1022
Abbas Kazerounian, Esq. (SBN: 249203)
S. Mohammad Kazerouni, Esq. (SBN: 252835)
10 Kazerouni Law Group, APC
2700 North Main Street, Ste. 1050
Santa Ana, CA 92866
12 Telephone: (800) 400-6808
HYDE & SWIGART
Facsimile: (800) 520-5523
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Drew Moss, and Sahar '11CV0906 LAB
Case No.: _____________JMA
Maleksaeedi, Individually and on
19 Behalf of All Others Similarly CLASS ACTION
Complaint for Damages and
21 Plaintiffss, Injunctive Relief Pursuant To The
v. Telephone Consumer Protection
Act, 47 U.S.C § 227 et seq.
23 Twitter, Inc.,
Defendant. Jury Trial Demanded
Complaint for Damages - 1 of 8 -
2 1. Drew Moss and Sahar Maleksaeedi (“Plaintiffs”) bring this Class Action
3 Complaint for damages, injunctive relief, and any other available legal or
4 equitable remedies, resulting from the illegal actions of Twitter, Inc.
5 (“Defendant”), in negligently, and/or willfully contacting Plaintiffs on
6 Plaintiffs’ cellular telephones, in violation of the Telephone Consumer
7 Protection Act, 47 U.S.C. § 227 et seq., (“TCPA”), thereby invading
8 Plaintiffs’ privacy. Plaintiffs allege as follows upon personal knowledge as to
9 their own acts and experiences, and, as to all other matters, upon information
10 and belief, including investigation conducted by their attorneys.
11 JURISDICTION AND VENUE
12 2. Jurisdiction is proper under 28 U.S.C. § 1332(d)(2) because Plaintiffs seek up
HYDE & SWIGART
13 to $1,500 in damages for each call in violation of the TCPA, which, when
14 aggregated among a proposed class number in the tens of thousands, exceeds
15 the $5,000,000 threshold for federal court jurisdiction. Further, Plaintiffs
16 allege a national class, which will result in at least one class member
17 belonging to a different state than that of Defendant, providing jurisdiction
18 under 28 U.S.C. Section 1332(d)(2)(A). Therefore, both elements of diversity
19 jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”) are
20 present, and this Court has jurisdiction.
21 3. Venue is proper in the United States District Court for the Southern District of
22 California pursuant to 18 U.S.C. § 1391(b) and 1441(a) because the events
23 giving rise to Plaintiffs’ causes of action against Defendant occurred within
24 the State of California and the County of San Diego, within this judicial
Complaint for Damages - 2 of 8 -
2 4. Plaintiffs are, and at all times mentioned herein were, citizens and residents of
3 the State of California. Plaintiffs are, and at all times mentioned herein were,
4 “persons” as defined by 47 U.S.C. § 153 (10).
5 5. Plaintiffs are informed and believe, and thereon allege, that Defendant is, and
6 at all times mentioned herein was, a corporation whose primary corporate
7 address is in San Francisco, California. Defendant, is a citizen of this state.
8 Defendant is, and at all times mentioned herein was, a corporation and a
9 “person,” as defined by 47 U.S.C. § 153 (10). Defendant provides a social
10 networking service through the use of text messages with more than 100
11 million active users. Plaintiffs allege that at all times relevant herein
12 Defendant conducted business in the State of California and in the County of
HYDE & SWIGART
13 San Diego, and within this judicial district.
14 FACTUAL ALLEGATIONS
15 6. At all times relevant, Plaintiffs were a citizens of the State of California.
16 Plaintiffs are, and at all times mentioned herein were, “persons” as defined by
17 47 U.S.C. § 153 (10).
18 7. Defendant is, and at all times mentioned herein was, a corporation and a
19 “person,” as defined by 47 U.S.C. § 153 (10).
20 8. At all times relevant Defendant conducted business in the State of California
21 and in the County of San Diego, within this judicial district.
22 9. Plaintiffs have been members of Twitter for a considerable period of time.
23 10. Plaintiffs activated one or more options in their Twitter accounts, online, to
24 receive notifications concerning their account via text messages on April 6,
26 11. Plaintiffs continued to receive text message notifications from Defendant
27 thereafter. At some point Plaintiffs decided that they no longer wanted to
28 receive text message notifications on their cellular telephone from Defendant.
Complaint for Damages - 3 of 8 -
1 12. Plaintiffs then responded to Defendant’s last text message notification by
2 replying “stop,” as instructed by Twitter.
3 13. At this point, Plaintiffs withdrew any express or implied consent to receive
4 text message notification to their cellular telephone that they may have
5 previous given Twitter.
6 14. In response to receiving this revocation of consent, Defendant then
7 immediately sent another, unsolicited, confirmatory text message to
8 Plaintiffs’ cellular telephones.
9 15. This unsolicited text message placed to Plaintiffs’ cellular telephone was
10 placed via an “automatic telephone dialing system,” (“ATDS”) as defined by
11 47 U.S.C. § 227 (a)(1) as prohibited by 47 U.S.C. § 227 (b)(1)(A).
12 16. The telephone number that the defendant, or its agents, called was assigned to
HYDE & SWIGART
13 a cellular telephone service for which Plaintiffs incured a charge for incoming
14 calls pursuant to 47 U.S.C. § 227 (b)(1).
15 17. These telephone calls constituted calls that were not for emergency purposes
16 as defined by 47 U.S.C. § 227 (b)(1)(A)(i).
17 18. Plaintiffs did not provide Defendant or its agents prior express consent to
18 receive unsolicited text messages, pursuant to 47 U.S.C. § 227 (b)(1)(A).
19 19. These telephone calls by Defendant or its agents violated 47 U.S.C. § 227(b)
21 CLASS ACTION ALLEGATIONS
22 20. Plaintiffs bring this action on behalf of themselves and on behalf of and all
23 others similarly situated (“the Class”).
24 21. Plaintiffs represent, and are members of the Class, consisting of all persons
25 within the United States who received any unsolicited confirmatory text
26 messages and/or any other unsolicited text messages from Defendant after
27 any class member sent a reply text message, “stop,” to Defendant in response
28 to a text message sent by Defendant, which text message was not made for
Complaint for Damages - 4 of 8 -
1 emergency purposes or with the recipient’s prior express consent, within the
2 four years prior to the filing of this Complaint.
3 22. Defendant and its employees or agents are excluded from the Class. Plaintiffs
4 do not know the number of members in the Class, but believe the Class
5 members number in the hundreds of thousands, if not more. Thus, this matter
6 should be certified as a Class action to assist in the expeditious litigation of
7 this matter.
8 23. Plaintiffs and members of the Class were harmed by the acts of Defendant in
9 at least the following ways: Defendant, either directly or through its agents,
10 illegally contacted Plaintiffs and the Class members via their cellular
11 telephones by using an unsolicited and/or confirmatory text message, thereby
12 causing Plaintiffs and the Class members to incur certain cellular telephone
HYDE & SWIGART
13 charges or reduce cellular telephone time for which Plaintiffs and the Class
14 members previously paid, and invading the privacy of said Plaintiffs and the
15 Class members. Plaintiffs and the Class members were damaged thereby.
16 24. This suit seeks only damages and injunctive relief for recovery of economic
17 injury on behalf of the Class and it expressly is not intended to request any
18 recovery for personal injury and claims related thereto. Plaintiffs reserve the
19 right to expand the Class definition to seek recovery on behalf of additional
20 persons as warranted as facts are learned in further investigation and
22 25. The joinder of the Class members is impractical and the disposition of their
23 claims in the Class action will provide substantial benefits both to the parties
24 and to the court. The Class can be identified through Defendant’s records or
25 Defendant’s agents’ records.
26 26. There is a well-defined community of interest in the questions of law and fact
27 involved affecting the parties to be represented. The questions of law and fact
Complaint for Damages - 5 of 8 -
1 to the Class predominate over questions which may affect individual Class
2 members, including the following:
3 a) Whether, within the four years prior to the filing of this Complaint,
4 Defendant placed any confirmatory text messages (other than a text
5 message made for emergency purposes or made with the prior express
6 consent of the called party) to a Class member using any automatic
7 telephone dialing and/or texting system to any telephone number
8 assigned to a cellular telephone service;
9 b) Whether Plaintiffs and the Class members were damaged thereby, and
10 the extent of damages for such violation; and
11 c) Whether Defendant should be enjoined from engaging in such conduct
12 in the future.
HYDE & SWIGART
13 28. As a person that received at least one confirmatory text message without
14 Plaintiffs’ prior express consent, Plaintiffs are asserting claims that are typical
15 of the Class. Plaintiffs will fairly and adequately represent and protect the
16 interests of the Class in that Plaintiffs have no interests antagonistic to any
17 member of the Class.
18 29. Plaintiffs and the members of the Class have all suffered irreparable harm as a
19 result of the Defendant’s unlawful and wrongful conduct. Absent a class
20 action, the Class will continue to face the potential for irreparable harm. In
21 addition, these violations of law will be allowed to proceed without remedy
22 and Defendant will likely continue such illegal conduct. Because of the size
23 of the individual Class member’s claims, few, if any, Class members could
24 afford to seek legal redress for the wrongs complained of herein.
25 30. Plaintiffs have retained counsel experienced in handling class action claims
26 and claims involving violations of the Telephone Consumer Protection Act.
27 31. A class action is a superior method for the fair and efficient adjudication of
28 this controversy. Class-wide damages are essential to induce Defendant to
Complaint for Damages - 6 of 8 -
1 comply with federal and California law. The interest of Class members in
2 individually controlling the prosecution of separate claims against Defendant
3 is small because the maximum statutory damages in an individual action for
4 violation of privacy are minimal. Management of these claims is likely to
5 present significantly fewer difficulties than those presented in many class
7 32. Defendant has acted on grounds generally applicable to the Class, thereby
8 making appropriate final injunctive relief and corresponding declaratory relief
9 with respect to the Class as a whole.
10 FIRST CAUSE OF ACTION
11 NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT
12 47 U.S.C. § 227 ET SEQ.
HYDE & SWIGART
13 33. Plaintiffs incorporate by reference all of the above paragraphs of this
14 Complaint as though fully stated herein.
15 34. The foregoing acts and omissions of Defendant constitute numerous and
16 multiple negligent violations of the TCPA, including but not limited to each
17 and every one of the above-cited provisions of 47 U.S.C. § 227 et seq.
18 35. As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et seq,
19 Plaintiffs and The Class are entitled to an award of $500.00 in statutory
20 damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B).
21 36. Plaintiffs and the The Class are also entitled to and seek injunctive relief
22 prohibiting such conduct in the future.
23 PRAYER FOR RELIEF
24 Wherefore, Plaintiffs respectfully request the Court grant Plaintiffs and The Class
25 members the following relief against Defendant:
Complaint for Damages - 7 of 8 -
1 FIRST CAUSE OF ACTION FOR NEGLIGENT VIOLATION OF
2 THE TCPA, 47 U.S.C. § 227 ET SEQ.
3 37. As a result of Defendant’s negligent violations of 47 U.S.C. § 227(b)(1),
4 Plaintiffs seek for themselves and each Class member $500.00 in statutory
5 damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B).
6 38. Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such
7 conduct in the future.
8 39. Any other relief the Court may deem just and proper.
9 TRIAL BY JURY
10 40. Pursuant to the seventh amendment to the Constitution of the United States of
11 America, Plaintiffs are entitled to, and demand, a trial by jury.
HYDE & SWIGART
Date: April 27, 2011 HYDE & SWIGART
By: _/s Joshua B. Swigart____
Joshua B. Swigart
16 Attorneys for Plaintiffs
Complaint for Damages - 8 of 8 -